NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 19 2024

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JUSTIN HART, No. 23-15858

Plaintiff-Appellant, D.C. No. 3:22-cv-00737-CRB

v.

MEMORANDUM*

FACEBOOK, INC.; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Northern District of California Charles R. Breyer, District Judge, Presiding

Argued and Submitted February 21, 2024 University of Pacific, McGeorge School of Law Sacramento, California

Before: RAWLINSON and CALLAHAN, Circuit Judges, and ENGLAND,** District Judge. Concurrence by Judge RAWLINSON.

Justin Hart sued Facebook, Twitter (now X Corporation), and certain federal

officials (“the Federal Defendants”) alleging that in 2020 and 2021, Facebook and

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. Twitter, acting in concert with the Federal Defendants, flagged his posts as

misinformation about COVID-19 and suspended or moderated his accounts. Hart

claims this violated his right to free speech under the First Amendment. The

district court dismissed Hart’s case against the private defendants under Federal

Rule of Civil Procedure 12(b)(6) for failure to state a claim and against the Federal

Defendants under Federal Rule of Civil Procedure 12(b)(1) for lack of standing.

Hart v. Facebook, 2022 WL 1427507 (N.D. Cal. 2022). The district court then

denied Hart’s motion to amend and entered a final judgment.1 Hart v. Facebook,

2023 WL 3362592 (N.D. Cal. 2023). We have jurisdiction under 28 U.S.C. §

1291, and we affirm.

1. We review de novo a dismissal for failure to state a claim pursuant to

Rule 12(b)(6). Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1040–

41 (9th Cir. 2011). A complaint must plead enough facts to “state a claim to relief

that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Dismissal is proper when the complaint does not make out a cognizable legal

1 The district court denied Hart’s motion to amend on the ground of futility finding that his proposed new allegations, like the allegations in the initial complaint, failed to plausibly allege state action. We review such a denial de novo to determine if it is clear that the complaint would not be saved by amendment. Carvalho v. Equifax Info. Servs., LLC, 629 F.3d 876, 893 (9th Cir. 2010). We agree with the district court that Hart’s proposed amended complaint fails to state a plausible claim for the same reasons his original complaint failed. Accordingly, while we have considered Hart’s proposed amended complaint, our de novo review focuses on the reasons behind the orders of dismissal.

2 theory or does not allege sufficient facts to support a cognizable legal theory.

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). A

complaint that alleges only “labels and conclusions” or a “formulaic recitation of

the elements of the cause of action” will not survive dismissal. Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

As private companies, Twitter and Facebook are not subject to the

Constitution’s constraints. O’Handley v. Weber, 62 F.4th 1145, 1155 (9th Cir.

2023); see also Prager Univ. v. Google LLC, 951 F.3d 991, 995‒99 (9th Cir.

2020). Both assert that they acted pursuant to their own policies in moderating

Hart’s accounts. Nonetheless, there are “exceptional cases in which a private

entity will be treated as a state actor.” O’Handley, 62 F.4th at 1155. To determine

whether a private entity will be treated as a state actor for constitutional purpose

we apply the two-step framework developed in Lugar v. Edmonson Oil Co. Inc.,

457 U.S. 922 (1982). O’Handley, 62 F.4th at 1156. We first ask “whether the

alleged constitutional violation was caused by the ‘exercise of some right or

privilege created by the State or by a rule of conduct imposed by the State or by a

person for whom the State is responsible,’” and “[i]f the answer is yes, we then ask

whether ‘the party charged with the deprivation [is] a person who may fairly be

said to be a state actor.’” Id. (quoting Lugar, 457 U.S. at 937).

The Supreme Court has developed four different tests to assist us in

3 identifying state action by a private person. Pasadena Republican Club v. W. Just.

Center, 985 F.3d 1161, 1167 (9th Cir. 2021). We read Hart’s briefs as only

asserting that Facebook and Twitter engaged in state action under the joint action

theory.2

In O’Handley, we held that the claim faltered at the first step of Lugar’s

two-step framework because “Twitter did not exercise a state-created right when it

limited access to O’Handley’s posts or suspended this account.” 62 F.4th at 1156.

Rather, its “right to take those actions when enforcing its content-moderation

policy was derived from its user agreement with O’Handley, not from any right

conferred by the State.” Id. Hart’s claims similarly falter as Facebook and

Twitter’s rights to moderate his posts arise from their user agreements with Hart,

not from any right conferred by the federal government.

“A plaintiff can show joint action either ‘by proving the existence of a

conspiracy or by showing that the private party was a willful participant in joint

action with the State or its agents.’” O’Handley, 62 F.4th at 1159 (quoting Tsao v.

Desert Palace, Inc., 698 F.3d 1128, 1140 (9th Cir. 2012)).3 To prevail on a claim

2 We recognize that a case raising similar questions of government influence on social media companies is before the Supreme Court. See Murthy v. Missouri, 144 S. Ct. 7 (2023). We agree with the parties that we need not stay consideration of this appeal pending the Supreme Court’s decision in Murthy. 3 Hart does not allege the existence of a conspiracy.

4 of joint action, a “complaining party must also show that ‘there is a sufficiently

close nexus between the State and the challenged action of the regulated entity so

that the action of the latter may be fairly treated as that of the State itself.’” Blum v.

Yretsky, 457 U.S. 991, 1004 (1982) (quoting Jackson v. Metropolitan Edison Co.,

419 U.S. 351 (1974)). “The purpose of this requirement is to assure that

constitutional standards are invoked only when it can be said that the State is

responsible for the specific conduct of which the plaintiff complains.” Id.

We used the term “willful participant in joint action” in Tsao, F.3d at 1140,

but explained “[u]ltimately, joint action exists when the state has so far insinuated

itself into a position of interdependence with [the private entity] that it must be

recognized as a joint participant in the challenged activity.” Id. (cleaned up). We

further explained in O’Handley that “joint action is present when the State

‘significantly involves itself in the private parties’ action and decisionmaking’ in a

‘complex and deeply intertwined process.’” 62 F.4th at 1159 (quoting Rawson v.

Recovery Innovations, Inc., 975 F.3d 742, 753 (9th Cir. 2020)). We noted that

“[t]he test is intentionally demanding and requires a high degree of cooperation

between private parties and state officials to rise to the level of state action.” Id. at

1159–60.

Hart has not shown that the Federal Defendants are responsible for

Facebook and Twitter’s moderation of his posts. In O’Handley we found no

5 plausible inference of entwinement, noting:

The only alleged interactions are communications between the OEC and Twitter in which the OEC flagged for Twitter’s review posts that potentially violated the company’s content-moderation policy. The fact that the OEC engaged in these communications on a repeated basis through the Partner Support Portal does not alter the equation, especially because O’Handley alleges only one such communication regarding him.

Id. at 1160. Before us, Hart cites only ten interactions between the federal officials

and Facebook and Twitter over a period of five months. Hart was not a subject of

any of the interactions, only five of the interactions were initiated by the Federal

Defendants, and none of the interactions suggest that the federal officials were

attempting to become significantly involved in Facebook and Twitter’s actions.

Rather, the interactions show that the federal officials sought to inform Facebook

and Twitter of what the government considered to be misinformation about

COVID-19. In O’Handley, we held that this type of “consulting and information

sharing” does not rise to the level of joint action. Id. Hart has not made a

plausible claim of joint action.

2. We review de novo the dismissal of the Federal Defendants for lack of

standing. Confederated Tribes and Bands of the Yakama Nation v. Yakima Cnty.,

963 F.3d 982, 988 (9th Cir. 2020). To establish Article III standing to sue, a

plaintiff must demonstrate that he ‘“(1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be

6 redressed by a favorable judicial decision.’” O’Handley, 62 F.4th at 1161 (quoting

Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016)). Even assuming that Hart has

shown injury and can meet a lenient definition of traceability, his injury is not

redressable because he has not shown that the Federal Defendants were responsible

for Twitter and Facebook’s actions. Both companies assert that they moderated

Hart’s accounts pursuant to their own policies. Because Hart has not plausibly

alleged that Twitter and Facebook acted at the behest of the Federal Defendants—

as opposed to pursuant to their own policies—he has not shown that a favorable

judicial decision against the Federal Defendants would provide him any relief. The

district court did not err in dismissing Hart’s action against the Federal Defendants

for lack of standing.

3. Finally, Hart asserts that the district court erred in entering judgment in

favor of the Federal Defendants in light of his Freedom of Information Act

(“FOIA”) claim. But Hart stipulated in the district court that he did not intend to

challenge the completeness of the federal officials’ response to his FOIA request or

challenge the redactions made pursuant to the privileges claimed. The district

court, relying on the stipulation, vacated the case management deadlines and the

case management conference. Hart has not shown that any concerns he may have

had as to the response to his FOIA request survive the stipulation and order.

The district court’s dismissal of Hart’s action is AFFIRMED.

7

FILED

Hart v. Facebook, Inc., Case No. 23-15858

APR 19 2024

Rawlinson, Circuit Judge, concurring in the result:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.

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